Courtroom Strategy by Attorney Oscar Michelenhttps://courtroomstrategy.com
Commentary on Current Litigation and Legal IssuesTue, 18 Dec 2018 20:57:24 +0000en-UShourly1https://wordpress.org/?v=4.9.9https://courtroomstrategy.com/wp-content/uploads/2016/06/cropped-OM-web-headshot-32x32.jpgCourtroom Strategy by Attorney Oscar Michelenhttps://courtroomstrategy.com
323214390642Will Alfonso Ribiero Win His Lawsuit Against Fortnite Over “The Carlton Dance?” (Hint: No)https://courtroomstrategy.com/2018/12/will-alfonso-ribiero-win-his-lawsuit-against-fortnite-over-the-carlton-dance-hint-no/
https://courtroomstrategy.com/2018/12/will-alfonso-ribiero-win-his-lawsuit-against-fortnite-over-the-carlton-dance-hint-no/#respondTue, 18 Dec 2018 20:57:24 +0000https://courtroomstrategy.com/?p=3694[...]]]>Actor Alfonso Ribiero played nerdy guy Carlton on “The Fresh Prince of Bel Air” back in the last century. One of the greatest scenes from the show was when Cartlon, home alone, dances wildly to Tom Jones’ hit “Its Not Unusual.” The dance became his signature move and dubbed The Carlton. Now two video game companies are being sued over incorporating a segment of the dance into their game’s characters. He has sued Epic which makes the popular game Fortnite and 2K which produces NBA 2K16. He is in the process now of trying to file copyright over the dance move. The lawsuit raises several issues as Epic has included other signature dance moves (like Snoop Dogg’s from “Drop It Like It’s Hot”) into its game.

Are Dance Moves “Copyrightable?” Yes, US Copyright circulars confirm that works of art that are protectable under copyright include “Rhythmic movements of one or more dancers’ bodies in a defined sequence and a defined spatial environment, such as a stage.” It makes sense of course. Imagine if anyone could just copy a Twyla Tharp, or Alvin Ailey, or Martha Graham piece and put it out as their own.

Is the Piece of the Carlton Dance Used by the Companies Enough to be an Infringement?” It depends. Generally, small snippets of a copyrighted work might not be enough to constitute a copy and become an actionable infringement. We recently celebrated the 20th anniversary of Biz Markie’s loss in a lawsuit brought by Gilbert O’Sullivan for infringement of a sample of O’Sullivan’s hit “Alone Again Naturally” in the Biz Markie hit “He’s Just a Friend.” The court found that the small section of the song was a recognizable element of the prior song and constituted infringement. The decision permanently altered the landscape for sampling. Major labels were forced to dedicate additional staff and resources (jobs for lawyers!!) toward scouring releases to make sure all samples had proper clearance. A few notes may be enough if it is recognizable as the prior art. Think of the bass line from “Under Pressure” sampled by Vanilla Ice in “Ice Ice Baby.” I think the few moves taken by Epic and 2K are identifiable as The Carlton Dance so that hurdle should be cleared.

Image Courtesy of Cinema of Gaming

Is it Original? Here’s where the trouble starts. After all, Cartlon was essentially lampooning the way Tom Jones danced to his song. I also found this 2015 quote from Ribiero online about how he came up with the dance:

“The Carlton Dance was created when it said in the script: ‘Carlton dances. It was never even intended to be funny; it was just that he was dancing. The dance is ultimately Courtney Cox in the Bruce Springsteen video ‘Dancing in the Dark’; that’s the basis. Or in Eddie Murphy’s ‘Delirious’ video, ‘The White Man Dance’ as he called it. And I said, ‘That is the corniest dance on the planet that I know of, so why don’t I do that?'”

Uh Oh. Obviously if he copied the dance from someone else or from moves that were just archetypical then there is no originality. Without originality there is no protection.

Whose Dance is it Anyway? Another hurdle is that Ribiero did the dance as a character on a TV show. It is highly likely therefore that all intellectual property rights in the show and its elements (including the dance) belong to whoever owns the IP rights in the show and not to Ribiero.

Does Ribiero Have Any Other Recourse? Ribiero could try and argue that the copying is taking his likeness and using it for profit in violation of Right to Privacy and Right to Publicity laws. But once again – its not really his likeness. The characters don’t look like him, they don;t talk like him. They dance LIKE CARLTON. And he does not own Carlton. He is not Carlton. SO this claim would fail. For the same reason any attempt to register his dance as a trademark would also likely fail since it would be a trademark belonging to the show and not to Ribeiro.

Conclusion Sorry Alfonso there is no Santa Claus for you. I don’t see a way that this is a winnable claim. Now the companies involved may want to avoid bad publicity and try to strike a quick settlement along with a confidentiality agreement, but that’s a different story. If this gets in front of a judge I think Ribiero will likely be out of luck.

Follow me on Twitter @oscarmichelen

]]>https://courtroomstrategy.com/2018/12/will-alfonso-ribiero-win-his-lawsuit-against-fortnite-over-the-carlton-dance-hint-no/feed/03694“Advice of Counsel” Defense is Periloushttps://courtroomstrategy.com/2018/12/advice-of-counsel-defense-is-perilous/
https://courtroomstrategy.com/2018/12/advice-of-counsel-defense-is-perilous/#commentsFri, 14 Dec 2018 03:29:24 +0000https://courtroomstrategy.com/?p=3689[...]]]>President Donald Trump offered a defense Thursday to accusations he broke campaign finance law by directing his longtime attorney/fixer Michael Cohen to orchestrate hush-money payments to conceal at least two of Trump’s alleged affairs: He was just following his lawyer’s advice. His exact statement was put out on Twitter:

“I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called ‘advice of counsel,’”

This President is supposedly surrounded by some of the best lawyers in the country on his legal team but he seems to think he can handle it on his own because certainly no responsible lawyer would let his client Tweet out what your defense to a Federal felony would be and especially if “advice of counsel” was your defense.

Courts have held that the defense applies when a person has gone to a lawyer to ask about whether something is legal, disclosed all material facts, and then relied in good faith on the professional’s advice that no laws were being broken. So that means Trump would have to allege he was worried that the hush money might be campaign finance violation and asked Cohen whether it was and Cohen told him no. But he has also repeatedly stated that (a) he had no idea about the payments (b) it was not related to the campaign and (c) Cohen acted on his own. If he were to assert this on the stand, say in some future trial or hearing, the cross examination would be swift and painful. Trump would have to establish that he was actually seeking Cohen’s legal advice in connection with the hush-money payments and not relying on him to handle the matter as his long-time fixer. He would be asked why he thought he needed legal advice and essentially have to acknowledge he was worried about violating campaign finance laws. His intent to violate the law is a key element that the US Attorney’s Office would have to prove and it would have been by far the hardest. But if the Advice of Counsel argument fails, then Trump would have admitted his intent for nothing good in return. In some Federal Circuits, the defense only mitigates punishment, it does not vindicate or clean up the conduct. Since its the SDNY, it would be the Second Circuit that controls. In 2017, the Second Circuit issued an opinion that stated that it is not an affirmative defense but rather can be used to disprove intent. This is the legal explanation of the principle the court stated should be read to a jury:

If the defendant relied in good faith on the advice of an attorney that his conduct was lawful, then he lacked the intent to defraud or willfulness required to prove the offenses charged. The defendant relied in good faith on the advice of counsel if:

1. Before taking action, he in good faith sought the advice of an attorney whom he considered competent to advise him on the matter; and
2. He consulted this attorney for the purpose of securing advice on the lawfulness of his possible future conduct; and
3. He made a full and accurate report to his attorney of all material facts that he knew; and
4. He then acted strictly in accordance with the advice of this attorney.
You may consider the reasonableness of the advice provided by the attorney when determining whether the defendant acted in good faith.
The defendant does not have to prove his good faith. Rather, the government must prove beyond a reasonable doubt that the defendant acted with intent to defraud or willfully as charged

The mere fact that the defendant may have received legal advice does not, in itself, necessarily constitute a complete defense. Instead, you must ask yourselves whether the defendant honestly and in good faith sought the advice of a competent lawyer as to what he may lawfully do; whether he fully and honestly laid all the facts before his lawyer; and whether in good faith he honestly followed such advice, relying on it and believing it to be correct. In short you should consider whether, in seeking and obtaining advice from a lawyer, the defendant intended that his acts shall be lawful. If he did so, it is the law that a defendant cannot be convicted of a crime that involves willful and unlawful intent, even if such advice were an inaccurate construction of the law.
On the other hand, no man can willfully and knowingly violate the law and excuse himself from the consequences of his conduct by pleading that he followed the advice of his lawyer Whether the defendant acted in good faith for the purpose of seeking guidance as to the specific acts in this case, and whether he made a full and complete report to his lawyer, and whether he acted substantially in accordance with the advice received, are questions for you to determine.

Also, the advice-of-counsel defense doesn’t apply if both the lawyer and the client understand that what they are doing is illegal. According to Cohen, both he and Trump understood that they were paying hush money to quiet the women and influence an election, and then covered it up to hide the illegality. So if a jury believed Cohen, the defense would fail. The court would also look at whether Trump acted reasonably in relying on Cohen who had no real expertise in campaign finance law.

Dumb & Dumber?Photo credit:Jonathan Ernst/Reuters

But there is another reason why it is dangerous for any person accused of a crime to assert the Advice of Counsel defense. Once you do, you have opened the door to all your attorney-client confidential material on the subject. You cannot assert the defense and maintain the attorney-client privilege. That is why it is one of the least used defenses in criminal defense. You mostly see it in tax cases or other cases where the crime is easily proved by documents and you have no other factual based defense other than “I relied on my lawyer.” Last year, for example, New York Mayor Bill de Blasio dodged criminal charges for election law violations in part because the parties involved in making legally questionable transfers of campaign funds relied on the advice of their attorneys. It would have been hard to prove otherwise since attorneys were proven to be involved in the transfers and the was a very limited scope of representation so there was no door that could be too widely opened. Contrasting that to the Trump/Cohen scenario, their long-standing relationship would be up for inspection. Also, Trump would be losing a key argument to fighting the subpoena that allowed the raid on his lawyer’s office. Remember all that fighting about which documents were privileged and which weren’t? Well, that argument goes out the window and all of the several hundred pages that were deemed attorney-client privileged could be revealed. And by the way, many courts have ruled that the waiver of privilege extends past the alleged criminal act itself so all the communications before and after the alleged crime would be up for grabs.

Trump has not been charged with a crime, and it remains unclear whether the U.S. Justice Department, under its own protocol, would ever bring a case against a sitting president. So I am writing this not for President Trump but for those who might be thinking about invoking this defense. Be careful. Tread lightly. You could easily be making matters worse for yourself.

Follow me on Twitter @oscarmichelen

]]>https://courtroomstrategy.com/2018/12/advice-of-counsel-defense-is-perilous/feed/23689Cyntoia Brown Should Not Have to Serve 51 Yearshttps://courtroomstrategy.com/2018/12/cyntoia-brown-should-not-have-to-serve-51-years/
https://courtroomstrategy.com/2018/12/cyntoia-brown-should-not-have-to-serve-51-years/#commentsSun, 09 Dec 2018 23:48:53 +0000https://courtroomstrategy.com/?p=3685[...]]]>It would be difficult to find a more disturbing case than that of Cyntoia Brown’s. It reveals much of what’s wrong with the criminal justice system in many parts of our country. The last unjust stroke came last week when the Tennessee Supreme Court ruled that she must serve out her 51 year sentence. Here’s a quick synopsis and timeline of events:

+ She was put up for adoption at the age of 2, and her life after that was a traumatic spiral of verbal abuse, physical abuse, sexual abuse, and substance abuse.
+ When her mother became pregnant with Cyntoia, she continued consuming alcohol which resulted in fetal alcohol spectrum disorder. Her mother also began using crack cocaine when Cyntoia was eight months old, and Cyntoia was then given up to Ellenette Brown. The abuse continued there and Cyntoia became a runaway
+ By the time she was 16, Cyntoia Brown’s sexual encounters had included many rapes, assaults during or before sex, and times when she was under the influence of drugs
+ Brown had a physically and sexually abusive pimp named “Kut-throat” who brandished guns at her and forced her into prostitution.
+ In 2004, at the age of 16, she was sold as a sex-slave by Kut-throat to a 43-year-old Nashville realtor—Johnny Mitchell Allan.
+ By all accounts, Allan continued the abuse and according to Cyntoia often threatened her with a gun. He was an avid collector who had many guns in his home.
+ According to Cyntoia, during one particularly violent evening, Cyntoia was scared Allan was reaching for a gun under his bed and she got a hold of one of Allan’s guns and shot him, killing him.
+ In 2004, she was tried as an adult for killing Allen.
+ A jury convicted the then-16-year-old to life in prison. Under the then-Tennessee law, she would only be eligible for release after serving 51 years of her sentence.

So she is now appealing to a higher court. But the Tennessee legislature can act to pass a special bill to shorten her sentence or the Governor can commute it. Here’s why someone needs to act. A U.S. Supreme Court opinion in 2012 deemed mandatory life sentences without parole for juvenile offenders to be unconstitutional but the Tennessee Supreme Court said that under Tennessee law, a life sentence is considered 60 years, and that a 60-year sentence can be reduced by up to 15 percent (9 years) by earning certain sentence credits such as recognition for good behavior or participation in educational or vocational training. So therefore it is not a “mandatory” life sentence.

Cyntoia Brown

The law in Tennessee has since changed. Recognizing the reality of human trafficking, anyone 18 or younger cannot now even be charged with prostitution, and that change in law came about because of Brown’s case. Yet, when the law was changed no change was made to Brown’s sentence, so the new law is of little help to her.
But all states must pass a Raise the Age law similar to the one just passed in NY. The law has many useful provisions but in summary, 16 year olds can no longer be tried as adults. In 2019, the same will go for 17 year olds. Recognizing the impact of false confessions on youths charged with crime Raise the Age also requires Parental notification when their children are arrested. Questioning of youths must take place in age-appropriate settings, with parental involvement (including with regards to waiving Miranda rights), and for developmentally appropriate lengths of time. This would have helped Cyntoia who gave a confession. Finally, cases involving 16 and 17 year olds will be heard either in Family Court or a Youth Part within the criminal court. After ten years, convictions of 16 and 17 year olds can be sealed so that the convictions don’t haunt them for life.

Raise the Age is recognition of what scientists have been saying for years: Research into brain development underscores that adolescents are in fact children and that the human brain is not fully formed until the age of 25. As the cognitive skills of adolescents are developing, adolescents’ behavior is often impulsive and adolescents lack the ability to focus on the consequences of their behavior. Because the adolescent brain is still developing, the character, personality traits and behavior of adolescents are highly receptive to change; adolescents respond well to interventions, learn to make responsible choices, and are likely to grow out of negative or delinquent behavior. Of course, these issue are amplified when you add fetal alcohol syndrome and early-age drug abuse.

Sentencing a 16 year old to 51 years -even for murder – should simply not happen. Cyntoia’s sentence is beyond harsh – bordering on cruel and unusual punishment. If her case was so impactful as to make Tennessee correct its prostitution laws, then the Legislature or Governor must act to make Cyntoia’s sentence significantly shorter. Many celebrities have joined her cause and Kim Kardashian is paying for her appellate lawyers so hopefully shining a spotlight on her case will help get her out of jail much sooner than her current sentence requires.

Follow me on Twitter @oscarmichelen

]]>https://courtroomstrategy.com/2018/12/cyntoia-brown-should-not-have-to-serve-51-years/feed/53685What Young Lawyers Can Learn From Watching “Making A Murderer 2”https://courtroomstrategy.com/2018/12/what-young-lawyers-can-learn-from-watching-making-a-murderer-2/
https://courtroomstrategy.com/2018/12/what-young-lawyers-can-learn-from-watching-making-a-murderer-2/#respondWed, 05 Dec 2018 17:54:08 +0000https://courtroomstrategy.com/?p=3672[...]]]>As my law school semester winds down, I usually like to send a message to my outgoing students who are all 3Ls who will be graduating this May. This semester, there has been a lot of buzz about Netflix’s true crime documentary “Making a Murderer 2” and I can see that it has inspired many of my students as they prepare for their law careers to do exoneration work. So I thought it appropriate to summarize a few takeaways that I think young lawyers should get from the series.1.”Yes there are two paths you can go by but in the long run there’s still time to change the road your on”
OK, so that’s something they can learn from listening to Stairway to Heaven as well but here it applies to law careers. While the series focused heavily on Kathleen Zellner, Steven Avery’s latest lawyer, it didn’t much explain that she did not begin her career doing exoneration work. She initially had a practice working on routine personal injury cases and representing hospitals and insurance companies in accident and malpractice cases. So don’t get discouraged if your first job does not allow you to do the work that you dream of doing as a lawyer. I did not take on my first exoneration case until I was already practicing nearly 20 years. The steady and mature nature of my practice afforded me the time and experience to allow me to do pro bono work and spend time on investigating old cases. So wherever you are practicing, learn the trade (see the next item) and never give up on what you really want to do with your law degree if you don’t get the opportunity at the outset. A law career is a marathon not a sprint.2. Learn to litigate Sure transactional legal work can be lucrative and interesting (I guess) but if you learn how to litigate and litigate well the doors are wide open for yo to do whatever kind of law you want. I was very much influenced in this area by my very first law school professor David Rice who taught Civil Practice. He always championed trial lawyers and the importance of their work. And he always stressed that a lawyer who can litigate can practice in any field or fields they wish. On the first day of class he asked us “Q: What’s an anti-trust lawyer? A” A litigator with an anti-trust client. Q: What’s an entertainment lawyer? A litigator with an entertainment client.” Thirty years later, the message resonates with me as it has certainly be proven out in my practice. Learning how to prove and disprove issues in court is a skill applicable to all areas of law. It allows you the freedom to take on different types of cases and frankly, nothing makes you “feel like a lawyer” more than trying a case before a jury. Zellner transferred the litigation skills she learned in the early years in her practice into this field. You can’t “fake it till you make it” in litigation. You represent a client who has only their one shot to get the result they need. Therefore see point 33. Consider starting in government or other lower-paying jobs that will give you experience It can be hard to pass up the big paycheck that Big Law provides. Large firms in NY are currently paying their first-year associates over $160,000 annually. With lots of debt, it can be a nice way to get back into the black again and live a comfortable life. But you won’t see the inside of a courtroom for about five years and you won’t get to handle a matter on your own for about 10 years. You won’t ever be able to generate business as you cannot attract the kind of clients that can pay their lawyers $750-$1,500 per hour. If exoneration work is really what you want to do, you have to consider trading off money for experience. Government and clinic work allows you to gain valuable experience immediately. Sure you will earn about $100,000 less annually and many people cannot afford to to forgo that kind of cash. I get it. If that’s the case, then your second option is to ask to get involved in the pro bono work your firm does and see if they do exoneration cases; if not, suggest to the pro bono committee (after you have some years under your belt of course)that they try to take those on by working with either an innocence project or a law school with an exoneration clinic. Big Law has been instrumental in the field of exoneration and has been behind the reversal of dozens and dozens of wrongful convictions. As I said in Point 1, there are many paths you can go down to doing this work.MAM2 gave young lawyers great role models to emulate4. Thoroughness and preparation are key No matter what field of litigation you go into, being thorough and being prepared are the two most important aspects of the trade. When I taught trial advocacy I used to advise those in class to remember the “Five P’s of Trial Practice” – Prepare, preparing, preparation, preparedness and prep-work.” Cases that go to trial are not usually the slam dunk cases – those get settled or resolved by motions. Its the ones in the gray area that can go either way that get fully litigated. I have found that the most-prepared lawyer in those types of cases usually wins. In MAM2, we see stellar advocate and law professor Laura Nirider tirelessly practicing and preparing her arguments on behalf of Brendan Dassey. She knows the facts and the case law but nevertheless goes over them again and again. We see Zellner going over each document again and again and not putting her motion in until every corner of the document has been examined, re-examined and deemed ready to file. Take the time to go to the scene, repeatedly if necessary. Learn the critical documents and testimony better than your adversary so that you can catch them when they misstate something or leave something out. You also see the value of the collaborative process. Yes trial work is generally a lonely, lone wolf kind of deal. That’s one of the things I like most about it. But I am always bringing in others to listen to my case and hear out where I want to go with it and take in their input. For all her experience in this area of law, we see Zellner going into her law partner’s office repeatedly to talk the case through. Professor Nirider bounces ideas off of Steve Drizin, her fellow professor at Northwestern University and her co-counsel on the Brendan Dassey matter, and listens to his advice about arguments that will work and which he thinks will not or could be framed differently.5. There is no easy road If there is one thing MAM2 shows law students and young lawyers, its that there is no substitute for hard work. Trust me I have tried to find one in all my years of practice. MAM2 also shows you that despite hard work, preparation, diligence, passion, belief in your cause, the righteousness of the cause, you can still LOSE. Even though Dassey’s excellent lawyers one several victories along the way, in the end, the system won. Finality was more important than evidence and common sense. Despite Zellner’s work and efforts, her last motion was denied. For all the media buzz, press attention, skilled lawyering and effective advocacy Brendan Dassey and Steve Avery remain incarcerated. That should send a strong message to law students and young lawyers about the nature of leg work particularly in exoneration cases. Not enough people cared or paid attention when Bill Clinton and Congress gutted the Great Writ of Habeas Corpus with AEDPA. MAM2 does an effective job explaining how AEDPA damaged our Constitutional system and habeas relief and lawyers young and old alike should do all they can to reverse its harshest impacts and implications. But if there is one takeaway young lawyers should pay attention to from MAM2 its that this is frustrating work that more often than not results in losses. It takes a lot to overturn an old conviction that has been appealed and upheld. For all the attention on wrongful convictions over the past decade or so, courts are still likely to make you fight tooth and nail to not tip over the apple cart. To take these matters on, you need to be in a place where (a) you have the necessary skills to do so (b) you have the necessary time to do so; and (c) you have the necessary fortitude to do so – when there are no cameras or filmmakers following you around – and when failure can come more often than success.Conclusion MAM2 provided great insight into the legal field in general and innocence work in particular. It exposed law students and lawyers to lawyers to emulate – Steve Drizin, Laura Nirider and Kathleen Zellner, and lawyers not to emulate, Ken Kratz (the lead prosecutor) and Len Kachinsky, Dassey’s original lawyer, for example. It also showed how long litigation can take and how frustrating each step can be. It showed how you should take nothing at face value and question each and every piece of evidence and fact on your client’s behalf. Finally, it hopefully inspires newly minted lawyers to be dedicated to learning their craft and to putting in the time and effort to learn it right and to practice always at the highest level possible.

Follow me on Twitter @oscarmichelen

]]>https://courtroomstrategy.com/2018/12/what-young-lawyers-can-learn-from-watching-making-a-murderer-2/feed/03672Coziness Between Bench and Prosecutor’s Office a Continuing Problemhttps://courtroomstrategy.com/2018/11/coziness-between-bench-and-prosecutors-office-a-continuing-problem/
https://courtroomstrategy.com/2018/11/coziness-between-bench-and-prosecutors-office-a-continuing-problem/#commentsSat, 03 Nov 2018 16:24:27 +0000https://courtroomstrategy.com/?p=3665[...]]]>It is often an illusion that all lawyers and clients get the same treatment when standing before the bench in a court of law. The fact is that for a variety of reasons in criminal cases, there is a cozy relationship between the bench and the prosecutors appearing before them. Now before I go any further I need to say that I know that my son and daughter-in-law who are prosecutors in NYC – him in Brooklyn and her in Manhattan – will laugh out loud as they read this since many judges in those counties give DAs a very hard time and are generally considered pro-defendant. But those counties, along with the Bronx, are exceptions and in the other counties of NY – Queens and Staten Island – the coziness exists. Nationally, it is by far the rule.

A recent extreme and disturbing example arose out a Federal District Court in Illinois. US District Court Judge Colin Bruce was caught exchanging emails with prosecutors on trial before him – giving them advice on cross-examination and making other ex parte communications about their work. Bruce was removed from hearing any criminal matters after the Illinois Times reported on emails exchanged between Bruce and Lisa Hopps, a paralegal in the U.S. attorney’s office, during Sarah Nixon’s trial for kidnapping. In the emails, Bruce criticized the performance of prosecutors, made suggestions on how to question the defendant and assessed the odds of acquittal. “The content of Judge Bruce’s emails to Ms. Hopps regarding Ms. Nixon’s trial reveals a judge who has determined the defendant is guilty and should be convicted, is frustrated and angry that Ms. Nixon might not be convicted, and is willing to share with the prosecutor’s office how the prosecutors handling the case could improve their cross-examination to help ensure a conviction,” Nixon’s lawyers wrote in an Oct. 25 motion for a new trial. “It is impossible to overstate how improper Judge Bruce’s actions were.” Here’s a few examples of emails he said during Ms. Nixon’s trial:

“This trial went from slam-dunk for the prosecution to about 60-40 for the defendant.”

“I really cringed when the inexperienced DOJ attorney started (cross-examining) the defendant.”

The public defender’s office that represented Ms Nixon found many other examples of improper communications between the US Attorney’s Office and Judge Bruce. Attorneys for Jason Gmoser, who was convicted of child pornography charges in Bruce’s court and sentenced to life last year, requested a new trial based on emails between the judge and assistant U.S. attorney Elly Peirson, the prosecutor in the case. “You’re doing fine,” the judge wrote in one of the emails that wasn’t shared with defense attorneys. “Let’s get this thing done.” So much for fair and impartial. In other examples, the tone was sometimes jovial, as when Bruce referred to an approaching corruption trial of former U.S. Rep. Aaron Schock as “Schock-a-palooza” in a 2017 email to Staci Klayer, a paralegal in the federal prosecutor’s office. Of greater significance, when referring to four criminal cases before him, the judge also wrote in an email exchange with Klayer that he would grant no further continuances. In their motion for a new trial in the Nixon case, lawyers say that message shows that the judge had already decided the merits of any motion for postponement that might come before him and, further, the heads-up to prosecutors would have allowed them to prepare for trials with information that wasn’t available to defense lawyers. “That is bias,” Nixon’s lawyers wrote. Yeah, you think?

But his emails!!!

What’s the reason for the relationship? Particularly in suburban and rural counties and districts, judges are almost universally selected from ranks of former prosecutors. They are often presiding over prosecutors they trained or supervised or who are working in bureaus whose chiefs and assistant chiefs were the judge’s comrades. Judge Bruce, for example, was the First Assistant United States Attorney in the very District where he now sits. He worked with these various email buddies and the content of some of the messages reflect judge how cozy they are:

In a 2015 email exchange with Klayer about a scheduling matter, Bruce tells the paralegal that a hearing date already set would work for him. “I’m good,” Bruce wrote. “Whatever. (easy-going judge…. Love my job….)” Klayer responded with praise. “Yeah dude – you’re rocking it,” the paralegal wrote. “You were made for that position.” She ended her message with a smiley-face emoticon.

Another reason for the comfy relationship is logistics. Many prosecutor’s offices are located right in the same courthouse where the judge sits. They bump into each other on the street, in restaurants and in the halls of the courthouses. Often prosecutors are assigned to a particular judge or courtroom, so they appear before the same judge every day, day in and day out. Conferences are held in the judge’s chambers many times, so prosecutors sit there all day with their boxes of the files on that day while defense lawyers come in and out to discuss one or two particular cases. It is only natural that during the down time, they would have conversations about their personal life, vacations etc and even perhaps upcoming cases. Many is the time, in Nassau and Suffolk Counties, where I have gone to conference a case and already found the assistant DA and the judge and/or the judge’s law clerk engaged in a friendly conversation about golf, fishing, their kids or courtroom issues. Its so routine no one thinks twice about it.

Currently on the Federal bench nationally, only 15% of judges have criminal defense experience. About 63% had prosecutorial experience. The last judge of the Supreme Court to have criminal defense experience was Thurgood Marshall. Yet Alito, Roberts, Sotomayor, Gorsuch, Kavanaugh were all assistant US Attorneys. And Kagan and Thomas also worked for the government at a high level, Thomas as head of the EEOC and Kagan as Solicitor General. Even left-leaning President Obama, had 85% of his Federal appointees come from prosecutorial backgrounds.

So it has to start with State Court and Federal Courts being filled with a balance of folks who have significant criminal defense experience. But it is also important that when abuses like Judge Bruce’s warm and fuzzy relationship with his former office become evident, that the consequences be swift and severe. He should be removed form the bench and those that failed to report the misconduct should lose their jobs.

follow me on twitter @oscarmichelen

]]>https://courtroomstrategy.com/2018/11/coziness-between-bench-and-prosecutors-office-a-continuing-problem/feed/43665Bad Forensics: A Main Cause of Wrongful Convictionshttps://courtroomstrategy.com/2018/09/bad-forensics-a-main-cause-of-wrongful-convictions/
https://courtroomstrategy.com/2018/09/bad-forensics-a-main-cause-of-wrongful-convictions/#commentsTue, 25 Sep 2018 19:06:00 +0000https://courtroomstrategy.com/?p=3652[...]]]>TV viewers are addicted to forensic cop shows – CSI, NCIS, etc etc. The shows make it look like every crime can be solved by forensics and that forensic science is unassailable. In fact, bad forensics is one of the leading causes of wrongful convictions across the country. When I talk about “bad forensics” I group several categories of problems under that heading.

1. Mistakes – Often crime labs and crime scene detectives mishandle the material to be tested or the material has been tampered with by witnesses and bystanders before the police even get there. I had a case where the main evidence against the accused was that there were traces of gunpowder on his jacket which had been found at the scene of the crime. But during our investigation, we discovered that prior to sending the jacket off for testing, the police had taken several photographs of the jacket in an effort to record its condition prior to testing. They chose the most brightly lit room at the precinct to do so, which happened to be the precinct’s gun locker and storage facility. Police officers routinely cleaned their weapons in the room before and after firearm testing. Laying the jacket on the bare floor of that facility practically guaranteed that some gunpowder would transfer onto the sleeves. (It also explained why our expert – who tested it – also found traces of gunpowder on the back of the jacket.)

That same type of transference can happen with the holy grail of forensic evidence – DNA. While no one questions the validity of DNA evidence, as the science has allowed DNA to be found and identified from smaller and smaller samples, there is often no attempt to consider transference of DNA by touching objects that contain another persons’s DNA. Forbes Magazine recently reported on a study conducted by a group of scientists from Indiana. The study explained that current technologies used by forensic laboratories are now reading DNA profiles from low-template and low-quality samples, that have “not been systematically investigated.” Their conclusion was startling: Touch transfer DNA “could falsely link someone to a crime” and forensic scientists relying on modern high-sensitivity equipment could “falsely conclude that DNA left on an object is a result of direct contact.” Their findings also showed that it is impossible to scientifically determine whether the tiny bits of DNA came into contact with evidence from a direct source or from a secondary source. Also, and more frightening, no matter how much they tried to sanitize their experiment, unknown third-party DNA was nonetheless able to make its way into the results, highlighting the plausibility of cross-contamination with touch-transfer DNA.
The Forbes article focused on a case that I have previously spoken about and examined – that of Oklahoma City Police Officer Daniel Holtzclaw who was convicted of sexual assault. Miniscule trace amounts of DNA -invisible to the naked eye – were allegedly found on Officer Holtzclaw’s pants. But the evidence also showed that Officer Holtzclaw searched the accuser’s purse for evidence before he was swabbed for DNA. Going through the accuser’s personal belongings, his hands would likely come into contact with lots of her DNA. He then used the restroom, touching his pants in the process. The Indiana study tells us that it would be highly probable that a touch transfer of DNA could have occurred. In fact, consistent with touch-transfer DNA, an unaccounted-for and unknown male’s DNA had also been found on Holtzclaw’s pants. Nevertheless, the prosecutor told the jury that the speck of female DNA evidence was conclusive proof of sexual contact between Holtzclaw and the victim, and then, unsupported by his own evidence, claimed that the particular DNA came from the victim’s vagina —a scientifically impossible conclusion. Nevertheless, the jury found Holtzclaw guilty and sentenced him to 263 years in prison.

2. Misconduct – Sometimes, the crime lab techs just make results up. Over the last few years, many crime labs have been found to have employees and scientists who just straight up fabricated results. In 2013, the New York City Medical Examiner’s office confirmed that it was reviewing more than 800 rape cases from a 10-year period during which DNA evidence may have been mishandled by a lab technician who resigned in 2011 after an internal review uncovered problems with her work. The review uncovered dozens and dozens of cases in which DNA evidence was commingled with DNA evidence from other cases.
Also in 2013, a former chemist at a Massachusetts State drug lab was indicted on 27 counts of obstructing justice, tampering with evidence, perjury and other charges in connection with her handling of some of the tens of thousands of drug cases she worked on during her nine years there. “Little Annie” Dookhan is accused of faking test results, intentionally contaminating and padding suspected drug samples, forging co-workers’ signatures on lab reports, and falsely claiming to have a master’s degree in chemistry.
A few months before that, the St. Paul, Minn., police department’s crime lab suspended its drug analysis and fingerprint examination operations after two assistant public defenders raised serious concerns about the reliability of its testing practices. A subsequent review by two independent consultants identified major flaws in nearly every aspect of the lab’s operation, including dirty equipment, a lack of standard operating procedures, faulty testing techniques, illegible reports, and a woeful ignorance of basic scientific principles.
In Oklahoma City, home of the Holtzclaw case, crime lab analyst Joyce Gilchrist earned the nickname “Black Magic” for her uncanny ability to always find some forensic evidence tying the accused to the crime. She was exposed in 2001 after an investigation showed that she provided false evidence in a large number of cases. Her work sent 21 people to death row, twelve of whom were executed before they were exonerated. (By the way, how’s that support for the death penalty doing?)
The book “The Cadaver King and the Country Dentist” by Radley Balko and Tucker Carrington painfully and in great detail explains how an untrained medical examiner and a local dentist in Mississippi built a million dollar plus practice by simply falsifying findings and creating an alleged expertise in bite mark evidence. Many of their cases have been overturned and the people they sent away exonerated.
As bad as that was, it pales in comparison to West Virginia where crime lab analyst Fred Zain produce forensic matches in cases where others could not. The first ever DNA exoneration in the United States exposed Zain as a fraud who lied about his credentials and faked evidence in countless cases. The West Virginia Supreme Court undertook a special investigation into his work and concluded that Zain wrongfully convicted as many as 134 people.
I could go on and on but I hope you got the point. How does this happen? Think about it – often, the State gets the first crack at testing the evidence. In many cases, there may not be enough material to test or the mishandling of the evidence may prevent the defense from doing its own testing. So the State’s expert gets to say what they want without any fear or real contradiction.

3.Junk Science This last area deals with two issues- (a) untested and unproven scientific theories that are put before juries as gospel and (b) exaggeration of the validity or accuracy of testing methods. For years, the FBI had metallurgists who would testify that they could match bullets to each other by their specific lead content. So they would take a bullet found in a body and match it to a bullet found on the defendant or in their home and say they were a match. But then a retired FBI decided to test out the theory and established that it was completely unsupportable by scientific study. There was no way to reliably match the bullets by lead content because numerous manufacturers used the exactly same lead content. In a study conducted following his report, an FBI scientist admitted giving false testimony about lead bullet analysis in a Kentucky case and estimated that the technique has been used in about 2,500 cases since 1980 and has been mentioned in court testimony about 500 times since then.
Overstating the accuracy of forensic testing also caused an FBI scandal more recently. Hair fiber analysis has been a lynch-pin of forensic testimony in criminal cases. Scientists regularly testified that they can pinpoint – almost with DNA’s accuracy – that a hair fiber came from the defendant or the victim. Turns out they can’t. After a 2015 Washington Post report exposed the falsity of the analysis, the Office of Inspector General did a lengthy investigation into the FBI Crime Lab Hair Analysis Unit. The results were horrifying. Flawed forensics were used in at least 60 capital punishment cases, the OIG report found.
Fourteen defendants were either executed or died in prison. The OIG’s report criticized “the use of scientifically unsupportable analysis and overstated testimony by FBI lab examiners in criminal prosecutions.”
The Washington Post reported that of 28 examiners within the microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95% percent of the 268 trials reviewed. The study revealed:

(a) Microscopic hair analysis could not scientifically distinguish one individual to the exclusion of all others.
(b) Statistical weight could not be given to comparisons to suggest a likelihood that the hair derived from a specific source.
(c) Expert witnesses should not cite the number of hair analyses they had conducted in the lab to bolster the idea that they could definitively state that a hair belonged to a specific individual.

Over the past few years, advanced understanding in the science of hair types has left hair analysis, as a forensic tool, in tatters. Today’s consensus by real experts is more straightforward than ever: there is nothing that can credibly be said, by FBI-approved analysts or anyone else, about about the frequency with which particular characteristics of hair are distributed in the human population. Yet for decades, it was seen as rock-solid proof of an accused’s guilt. Countless people have gone to jail based on nothing more than an expert claiming they found a hair that definitively matched the accused or the victim; yet know its been proven to be virtually worthless as a method of identifying someone. It can only safely be used to rule out a suspect as the source of crime-scene materials or in combination with the vastly more accurate technique of DNA testing.

So what’s the message? We need to be much more careful when we give the seal of approval to forensic expertise that comes from a government crime lab. History has shown us that serious flaws have been discovered all too late for some people. Even when an accepted and accurate form of science like DNA is brought before a jury, we need to make sure that the defense has access to its own testing which should occur at the same time as the prosecution tests it, if at all possible. The defense also needs to be allowed to examine the methods and conditions under which the material was isolated and tested. Time and time again we have seen that allowing the State to put forth scientific evidence without safeguards leads to horrific results.

]]>https://courtroomstrategy.com/2018/09/bad-forensics-a-main-cause-of-wrongful-convictions/feed/13652Will Roy Moore Win His $95 Million Lawsuit Against Sacha Baron Cohen? Hint: No, He Will Lose.https://courtroomstrategy.com/2018/09/will-roy-moore-win-his-95-million-lawsuit-against-sacha-baron-cohen-hint-no-he-will-lose/
https://courtroomstrategy.com/2018/09/will-roy-moore-win-his-95-million-lawsuit-against-sacha-baron-cohen-hint-no-he-will-lose/#respondTue, 11 Sep 2018 14:26:53 +0000https://courtroomstrategy.com/?p=3643[...]]]>Former Alabama Senate candidate and State Supreme Court Judge Roy Moore has filed a $95 million defamation lawsuit against comedian Sacha Baron Cohen, Showtime and CBS after he appeared on Cohen’s series, “Who Is America?” In July, Moore appeared on the third episode of Who is America?, a Showtime series where the comedian disguises himself in interviews with unsuspecting guests ranging from Bernie Sanders to former Arizona sheriff Joe Arpaio. In the episode, Cohen disguised himself as an Israeli anti-terrorism expert and uses a metal detector that “detects pedophiles.” In the mock interview, it repeatedly beeps whenever it comes close to Moore. Moore denies being a pedophile and ends the interview suddenly.

The lawsuit claims Moore was invited to Washington, D.C., “to receive an award for his strong support for Israel in commemoration of its 70th anniversary as a nation state.” The court document says Moore “would not have agreed to appear” if he had known the outcome. The lawsuit ultimately claims the “fraudulent portrayal and mocking of Judge Moore as a sex offender” on the television show “severely harmed” his reputation and caused his family “severe emotional distress,” as well as “financial damage.” As a result, Moore is asking for $95 million in damages as well as attorneys’ costs and fees. A copy of the complaint can be found HERE

Photo courtesy of Showtime

Moore likely signed a broad and expansive release that advised him that he was waiving all claims including claims for defamation and, libel and slander. These releases have gotten Cohen and his company out of lawsuits before. In fact the only successful lawsuit was brought by a Palestinian grocer named Ayman Abu Aita, who was falsely called a terrorist n Cohen’s “Brüno” movie. Mr. Aita never signed a release.
Claiming that he was fraudulently induced into signing the release is Moore’s only hope. But that will likely fail as well. While I have not seen a copy of a release we have had some insight into the release’s language from past lawsuits. In 2009, Richelle Olsen, an executive director of a nonprofit in Palmdale, Calif., sued Mr. Cohen for an altercation during filming for “Brüno” that she said caused an injury. According to court papers, the release for Ms. Olsen — a “Standard Location Agreement” — stipulated that she had not relied upon any promises as to “the nature of the Film or the identity, behavior or qualifications of any of the cast members,” and that she was signing the paperwork “with no expectations or understandings concerning the conduct offensive or otherwise, of anyone involved with this film.”
Ms. Olsen’s suit was tossed in 2011. Moore is a lawyer and a judge and cannot claim he did not understand the plain meaning of the release.

Sometimes you can tell a lot about a lawsuit by looking at the lawyer who filed it. Moore’s lawyer is none other than Larry Klayman, a far right activist fool who loves to file frivolous lawsuits. He has filed dozens of lawsuits against the Bill Clinton administration in the 1990s. He is the founder of Judicial Watch and self-styled government watchdog group Freedom Watch. In addition to his lawsuits against the Clinton Administration, he is also a “birther” and once sued to have President Obama deported. Klayman has also filed a number of lawsuits against political figures and governmental agencies over the years, almost all of them thrown out:

In 2010, Klayman represented Vincent Forras in a lawsuit against Feisal Abdul Rauf to prevent the building of the so-called “Ground Zero mosque.” In the motion to dismiss, Rauf’s attorney called Klayman an “infamous publicity hound” and wrote that Forras “trades in his well deserved laurels for fifteen minutes of fame as a nationally recognized bigot.” Klayman and Forras sought sanctions, but the court denied that request and dismissed the suit. Klayman and Forras then sued Rauf and his attorney for defamation, and that suit was also dismissed

In 2011, Klayman represented conservative journalist Joseph Farah in a defamation lawsuit against Esquire magazine. A federal district judge dismissed the suit, and the United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal.

In 2011, Klayman represented Bradlee Dean in a defamation suit against Rachel Maddow. The suit was unsuccessful and Dean was ordered to pay defendants’ legal fees, totaling nearly $25,000.

In 2012 Klayman filed on behalf of a Florida resident an unsuccessful challenge to Barack Obama’s placement on the primary ballot and claimed the president is not a natural-born citizen as required by the Constitution.

In 2012, Klayman represented the presidential candidate for the Constitution Party and a member of the Alabama Republican party, who alleged the Alabama Secretary of State had a duty to investigate Obama’s eligibility. The trial court dismissed the complaint, and the Alabama Supreme Court affirmed the dismissal. Chief Justice Roy Moore and another justice dissented,however, arguing the Secretary of State did have the authority to conduct such an investigation.

In 2013, a citizen grand jury formed by Klayman “indicted” Obama and others of various crimes (including involuntary manslaughter), “convicted” Obama of fraud, and alleged the president forged his birth certificate in order to pass eligibility requirements.[57][58]

In 2013 Klayman sued the Obama administration over the collection of phone records by the National Security Agency (NSA). In 2017, the district court dismissed the lawsuit. The court noted, “Klayman accused this Court of being ‘coopted by the so called ‘Deep State’’ into ruling against him. Unfortunately for plaintiffs, such baseless accusations are no substitute for a well-pleaded complaint.”

Klayman has had several other dismissed suits against Obama, including a lawsuit alleging that the Obama administration had secretly allowed the Ebola virus to enter the United States to harm people of the “Caucasian race and Jewish-Christian religion;” a suit to block actions taken by the Obama administration regarding gun control; a lawsuit to block the Iran Nuclear Agreement Review Act of 2015; and a suit against Obama and others for inciting airport protests at the Los Angeles International Airport. All were dismissed.

In 2014, Klayman filed a lawsuit on behalf of Sheriff Joe Arpaio, alleging that the Obama administration’s actions regarding federal immigration policy were not authorized by Congress. Later in 2014, a federal court dismissed the lawsuit, concluding that Arpaio lacked standing to challenge the policy changes. The dismissal was affirmed by the United States Court of Appeals for the District of Columbia Circuit, and the United States Supreme Court declined to hear the case.

In 2015, Klayman filed a defamation lawsuit on behalf of Dennis L. Montgomery against James Risen, the author of Pay Any Price: Greed, Power, and Endless War. The lawsuit alleged that Risen falsely described Montgomery as “the maestro behind what many current and former U.S. officials … believe was one of the most elaborate and dangerous hoaxes in American history.” In 2016, a federal court dismissed Montgomery’s lawsuit.

In 2016, on behalf of five individuals who suffered physical harm after taking Levaquin, Klayman sued the drug’s manufacturer, Johnson & Johnson, former Food and Drug Administration Commissioner Margaret Hamburg, and Hamburg’s husband, alleging they colluded to enrich themselves by not warning the public that the drug posed health risks. In 2017, the federal district court dismissed the suit.

In 2016, Klayman applied in the United States District Court for the District of Nevada for permission to represent Cliven Bundy in the criminal case stemming from the 2014 Bundy standoff. Chief Judge Gloria Navarro denied Klayman’s request, citing his failure to fully disclose the extent of his prior professional discipline.

What Chief Judge Navarro was referring to was that in a 1992 trial in a California federal court, Judge William Keller barred Klayman from his courtroom for life. Five years later, in a separate case in New York, Klayman’s behavior led then district judge Denny Chin to issue a lifetime ban on the attorney practicing law before him.

In 2007, Klayman received a $25,000 retainer from a Daytona Beach woman facing criminal charges and she accused him of not providing legal services in return. The Florida Bar Association mediated the matter and Klayman agreed to pay off a small portion within 90 days, but after the deadline lapsed he was reprimanded by the association.

In 2014, Klayman agreed to be publicly censured by the D.C. Bar. Klayman represented three individuals who had sued Judicial Watch, his former employer and client, but he failed to obtain Judicial Watch’s consent to waive his conflict of interest. Klayman maintained that the bar “recognized there was no evidence of dishonesty or personal gain”. In June 2017, however, the discipline committee recommended that Klayman be suspended from practicing law for 90 days. The disciplinary matter remains pending before D.C. Court of Appeals.

An October 2016 opinion by a federal appellate court noted 12 cases “in which Klayman’s ability to practice law in an ethical and orderly manner was called into question.”

Besides his shoddy and shady lawyer, there are other problems with Moore’s lawsuit. For one, the show is clearly a parody so no one would actually believe that the instrument was truly labeling him a pedophile or sexual predator. It was obvious he was being pranked. Also, it would be hard to prove damages as those who thought Roy Moore was a predator thought so before and after the show aired and those that believed his denials – including President Trump of course – presumably were not swayed by the instrument’s beeping. So how was he harmed. Finally, Moore opens himself up to extensive questioning and discovery about the allegations of his sexual behavior since Cohen will also claim that “Truth is a defense.” He will be grilled for hours and perhaps even days by Cohen’s lawyers if the case makes it into the discovery phase. If the deposition is videotaped, Moore could wind up with another viral video he’d rather not have out there.

]]>https://courtroomstrategy.com/2018/09/will-roy-moore-win-his-95-million-lawsuit-against-sacha-baron-cohen-hint-no-he-will-lose/feed/03643Can Public Employees Be Made to Sign Non-Disclosure Agreements?https://courtroomstrategy.com/2018/08/can-public-employees-be-made-to-sign-non-disclosure-agreements/
https://courtroomstrategy.com/2018/08/can-public-employees-be-made-to-sign-non-disclosure-agreements/#respondTue, 14 Aug 2018 20:56:19 +0000https://courtroomstrategy.com/?p=3635[...]]]>Omarosa Manigault Newman will likely be continuing to make headlines for a little while longer as she can be expected to continue trickling out information from her time as a member of the Trump White House. The President has already filed for arbitration for a claim against her that she violated a non-disclosure agreement (NDA) that she signed with the Trump 2016 Campaign. Apparently, the Trump administration also required senior White House officials to sign NDAs forbidding them to disclose any confidential information about their work – not just during their time in office but even after they leave the White House.
The Washington Post’s Ruth Marcus obtained a draft version of the White House NDA. It said violators would face a $10 million penalty for every disclosure of nonpublic information they learned during their White House tenure, though the article said the penalty was probably reduced in the final version.

So the question arises: Can the government force its employees to sign NDAs? Can they face monetary penalties for breach of the NDA? The answer to both questions is likely “NO.” Government employees don’t work for a particular person. They work for the government and its people. For example, if there was an NDA and it were breached, it would be up to the US Attorney General’s Office to seek enforcement of it. Any monetary penalty would go to the tax coffers. For example, in Snepp v. United States, the Supreme Court ruled that an ex-CIA agent breached his agreement with the agency when he published a book about CIA activities in South Vietnam without first allowing the CIA to review his disclosures. The court directed the ex-agent’s profits into a trust for the government.

But the government’s reach would be limited by the Constitution. And government workers have Free Speech rights as well as “whistleblower” rights. Many federal employees are protected from retaliation for reporting crimes, violations, waste or fraud by the government agencies they work for. Federal employee whistleblowers are protected by the Whistleblower Protection Act of 1989 (WPA) and the Whistleblower Protection Enhancement Act of 2012.

Now the NDA reported on in the Post talks about “non-public information.” Well, non-public information would be “classified” information. Anything that the government does that is not classified is “public.” If a person leaks classified information – even if they are claiming whistleblower status – they will likely face criminal prosecution (Remember Edward Snowden?) They can then try to raise the whistleblower status in court. So the penalties for leaking classified information will be governed by the appropriate statute depending on which agency is involved. An NDA that tacks on additional penalties would therefore likely be unenforceable.

Ah, that pesky Bill of Rights !

Public employees, however, aren’t entitled to absolute First Amendment protection. And even if someone is a whistleblower and they sue in Federal Court for damages for being wrongfully terminated, they can be made to sign an agreement that they won’t make further disclosures in return for a monetary settlement. Also, the U.S. Supreme Court ruled in a 2006 case called Garcetti v. Ceballos that public employees can be fired or otherwise disciplined for speech connected to their jobs. That case is worthy of closer look to distinguish what is protected form what can get a public employee fired for speech.
Richard Ceballos, an employee of the Los Angeles District Attorney’s office, found that a sheriff misrepresented facts in a search warrant affidavit. Ceballos notified the attorneys prosecuting the case stemming from that arrest and all agreed that the affidavit was questionable, but the D.A.’s office refused to dismiss the case. Ceballos then told the defense he believed the affidavit contained false statements, and defense counsel subpoenaed him to testify. Ceballos alleged that D.A.s in the office retaliated against him for his cooperation with the defense, which he argued was protected by the First Amendment. He sued in Federal Court and it went up to the Supreme Court. In a 5-to-4 decision authored by Justice Anthony Kennedy, the Supreme Court held that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties. The Court said Ceballos’s employers were justified in taking action against him based on his testimony and cooperation with the defense because it happened as part of his official duties. “The fact that his duties sometimes required him to speak or write,” Justice Kennedy wrote, “does not mean his supervisors were prohibited from evaluating his performance.” The case cut right through the heart of the Whistleblower statutes and experts have estimated that the decision caused about 90% of all whistleblower cases filed at the time to be dismissed.

Under Garcetti and previous cases in this area that have followed it, government officials can face workplace consequences when they publicly voice concerns about their jobs in their official capacities. Of course, the President can fie anyone he wants – or have John Kelly do it – if he is not happy with their performance. But he can’t monetarily penalize them for speaking afterwards. And if the information is not classified it is public and can be disclosed.

Under case law from the federal appellate courts, including the 4th U.S. Circuit Court of Appeals in 1972’s U.S. v. Marchetti and the D.C. Circuit in 1983’s McGehee v. Casey, ex-employees have a First Amendment right to disclose non-classified information. McGehee is also worth a closer look since it involves an employment agreement with the CIA. Ralph W. McGehee was a former CIA officer. When he joined the CIA, McGehee signed an agreement that barred him from revealing classified information without prior CIA approval. After the CIA censored portions of a manuscript he wrote, McGehee sought a declaratory judgment that the CIA classification and censorship scheme violated the first amendment and that, even if the scheme were constitutional, his article contained no properly classified material. The district court rejected McGehee’s first amendment challenge, and found, after giving deference to the CIA’s judgment, that the CIA had properly classified the censored materials. The Circuit Court affirmed. The CIA classification and censorship scheme, the court said, protects critical national interests. The court also gave great deference to the CIA’s explanations of its classification decisions. But it is in its discussion of what it protected that is of interest in this situation. It made a clear distinction between classified and non-classified material and set up a two part test to determine if a government worker’s speech can be restricted finding that “The government has no legitimate interest in censoring unclassified materials.”:

First, restrictions on the speech of government employees must “protect a substantial government interest unrelated to the suppression of free speech.”

Second, the restriction must be narrowly drawn to “restrict speech no more than is necessary to protect the substantial government interest.”

McGehee’s employment agreement, the court said, “does not extend to unclassified materials or to information obtained from public sources. The government may not censor such material, ‘contractually or otherwise.’” (The D.C. Circuit was quoting from the 4th Circuit’s Marchetti decision in its reference to McGehee’s contract with the CIA.) It can therefore be inferred pretty easily that a broad NDA restricting ALL speech – including when a person leaves government – would be struck down as unconstitutional.

It is also highly unlikely that any of the information Manigault Newman would release would pass the two-step test set out in McGehee She is basically gossiping about Trump’s bad behavior and it will be difficult for the AG to claim that there was a strong governmental interest to be protected by suppressing it. So, grab your popcorn, or plug in your earplugs, cause I see no way the Trump administration can stop her from telling her tales.

]]>https://courtroomstrategy.com/2018/08/can-public-employees-be-made-to-sign-non-disclosure-agreements/feed/03635Is It Legal For an Attorney to Record A Client’s Conversation?https://courtroomstrategy.com/2018/07/is-it-legal-for-an-attorney-to-record-a-clients-conversation/
https://courtroomstrategy.com/2018/07/is-it-legal-for-an-attorney-to-record-a-clients-conversation/#commentsMon, 23 Jul 2018 03:04:02 +0000https://courtroomstrategy.com/?p=3627[...]]]>The news that Michael Cohen recorded conversations between him and Donald Trump has led to the usual and predictable firestorm. And in this day and age the usual and predictable firestorm includes “legal experts” on the many cable news channel opining on the legality of a lawyer taping a conversation. Some that I have seen are pretty much right on point; but others border on malpractice and outright incompetence. So my quick two cents on the issue:

Legal vs Ethical

When Trump tweets that it was “illegal” for Cohen to tape him he is simply wrong. The taping was done while both were in NY, which is a one party state. One party states allow any one person who is part of a conversation to tape record the conversation on the legal theory that both parties to a conversation own the entire conversation. No notice to the other party is required. Two-party states like California, require all parties to a conversation to consent to its recording. All states prohibit third parties from listening in to a conversation (without either party’s knowledge) and record that conversation. That’s called eavesdropping. NOTE: In a one party state if one party knows the other is listening in and recording it is legal even if the other party does not know someone else is on the line).
So it is legal.

But is it ethical? I can tell you that I would never do that to a client though I have been both knowingly and unknowingly recorded by clients in the past. In NY the ethical rules are murky and there is a big difference of opinion on whether lawyers can record ANY conversation ethically without notice to the other side – even if legal. In New York, there is an old opinion from the NYS Bar Association that says a lawyer taping anyone without consent is unethical. The Association of the Bar of the City of New York more recently took the position that it is almost always unethical and would be so if it were a routine practice – as it apparently was for Mr. Cohen. The NY County Bar Association on the other hand has taken the position that it is not unethical because it is legal in New York. The American Bar Association takes the position that it is not forbidden by the Model Rules. So that cloudy picture will likely enable Cohen to argue it is ethical, especially since no NY court has ever ruled that it is not.The Tale of the Tape
The only remaining issue is whether Trump can prevent its release by arguing that it was a privileged communication between client and lawyer. But Trump’s lawyers have already waived that privilege because they believe it vindicates him. So therefore no privilege attaches to the recording. A question may arise whether this waiver means any other tapes about the payment are now fair game. The privilege is the client’s to assert and while Trump cannot pick and choose which parts of one conversation he will waive the privilege on, he would be legally within this rights to pick and choose which separate and distinct conversations he will waive the privilege on.

Lawyers should think twice before recording their clients without their knowledge. Clients come to lawyers for advice and counsel during the most stressful and serious times of their lives. They should be able to speak unfettered by a concern that their statements may be recorded by their lawyer and that the recording may later slip into the wrong hands or be revealed by accident. We lawyers are in the secrets business. I need my clients to be able to be completely open and honest with me if I am to defend and protect their rights to the fullest extent possible. While I would not want a rule that prohibited lawyers from recording anyone without notice, the NY County Bar Association should join the others and state unequivocally that a lawyer recording their conversations with their clients without the client’s knowledge and permission is unethical and just plain wrong.

]]>https://courtroomstrategy.com/2018/07/is-it-legal-for-an-attorney-to-record-a-clients-conversation/feed/43627Want to Help Fight Wrongful Convictions? Sit on a Jury!https://courtroomstrategy.com/2018/06/want-to-help-fight-wrongful-convictions-sit-on-a-jury/
https://courtroomstrategy.com/2018/06/want-to-help-fight-wrongful-convictions-sit-on-a-jury/#commentsWed, 13 Jun 2018 22:36:57 +0000https://courtroomstrategy.com/?p=3612[...]]]>Not a month goes by that I don’t receive a phone call from some family member, friend, or friend of a family member, or family member of a friend, asking “What’s the best way to get out of jury service?” With about the same or similar frequency I get asked “I see that you are involved in fighting wrongful convictions. How can I get involved?” I publish this article in the hope of getting folks to see how the two questions are connected.

When I get the jury service question, I usually ask why they don’t want to sit. Inevitably, the responses are that they are too busy, too involved in work, have a vacation planned. Such callers are usually then put through a mini-lecture on my part about the importance of serving on a jury and the importance of having open-minded, well-read and justice-minded individuals sitting on a jury panel. Certainly, they can ask the jury clerk to postpone their service to a more convenient time. That request is almost universally granted so that most excuses can be put aside. These callers are usually also fans of law-related shows (which I never watch) like CSI, Law & Order, or the true crime shows like Dateline or American Crime Story. Why not sit on a real mystery instead and see how law is actually dispensed in this country? I then give them a shortened version of my jury questioning in criminal trials, a process I call “Recapture the Flag.” In picking criminal trials, prosecutors often get to wear a badge of honor as upholders of the law. They are viewed by jurors as allies of the court and law enforcement so that the jury is often left with the impression that the ADA is protecting our American way of life and all that stands between us and anarchy. Defense counsel on the other hand, is recognized as a necessary evil whose job is to get their guilty client off by any means necessary including lying, cheating and stealing. I try to shift that dynamic by usually asking the question “Why are our servicemen and women fighting abroad?” Inevitably a juror will answer “To Protect our freedoms” I follow up with “And what are those freedoms exactly?” Inevitably, a juror or two will rattle off the First Amendment freedoms – speech, exercise and non/establishment of religion, the press, assembly etc. The Second Amendment is also usually shouted out. My follow up: “What about the Sixth Amendment?” “Are our armed forces also fighting and serving to support the Fifth Amendment?” “Are those rights and freedoms any less important than the ones you mentioned” It opens up a dialogue about my role that yes of course I am representing and defending the individual on trial but I am also defending those rights as well – and so are jurors. Just like the men and women in uniform though of course at much less a cost and sacrifice, jurors protect and defend our freedoms. I have found it a very successful way to get jurors beyond paying lip service to the Presumption of Innocence, Burden of Proof and the Right to Remain Silent.

Letters, I get letters This picture is of one month’s request for help from incarcerated men eager to have their cases reviewed. I read each one personally and respond to each person. If a case is worthy of further review, I open a file and begin the process of looking into the case. Could I use help in the process? Have I sent out a few letters to others asking for them to help and follow up? Of course. But it is a time-consuming, frustrating , lengthy process. Think carefully before getting involved. You can have a more immediate and direct impact by serving on a jury and doing the service properly.

There are many causes to wrongful conviction – bad defense lawyering; overzealous prosecutors; biased police officers; sloppy and incomplete investigation; false confessions; faulty eyewitnesses and forensic evidence, etc etc. While stories of these tragedies and miscarriages of justice are prominent these days, when it comes time to try a criminal case, folks seem to cast aside the flaws in our criminal justice system and swallow whole what is portrayed before them by the prosecution. The system needs jurors to sit on criminal trials who are open-minded and will question the evidence presented. The system requires jurors who will hold the government to its high burden of proof and embrace the presumption of innocence and the right to remain silent. To recognize that the defense lawyer is upholding valuable rights fundamental to our society and revered by our Founding Fathers. Our system of justice is one of the greatest in the world. And by a very large margin – it gets things right. But because of the number of prosecutions and because of the systemic flaws listed above, injustices occur in significant numbers as well. The best way to fight wrongful convictions is to not have the conviction occur in the first place. And remember that a person being found guilty under the law and the facts is not wrongfully convicted either.

So please, next time you get that jury notice in the mail. Don’t call me. Serve. Make the time. Do your civic duty. Uphold the Constitution. One of the best things about jury service is that if you do it right, fairly and in proper application of the law, you defend the Constitution and perform a public service regardless of your verdict. And now to that you can add that you also help fight against wrongful convictions. Welcome to the club!